Procedure and House Affairs Committee on Dec. 10th, 2013

[Marc Mayrand]

Yes, and it's a mechanism that brings closure, because again these matters have been under review for an extensive period of time. That's a mechanism provided by the current statute, but there's a point where you need to bring an end to the review. Subsection 463(2) provides such a mechanism to bring closure on the matter of a return.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That's right. So if it were not for that particular section of the legislation, good or bad, however people want to interpret it, it would make it that much more difficult for Elections Canada to ensure that there is accurate and timely reporting. Is that a fair assessment?

[Marc Mayrand]

Yes. As I indicated earlier, the provision has been very effective over time to bring resolution to these matters.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Let's look at the intention of the legislation.

The purpose of the financial legislation is to level the playing field. We want to make sure that all candidates are spending the same amount of money in certain ridings. We invoke spending limits to ensure that takes place. If we have some candidates spending over the limit, technically that gives them an advantage, which goes against the principle of why it is we've brought in the legislation.

The only way we can make sure they're keeping within that spending limit is to ensure we have a provision like subsection 463(2).

The concern I have, based on the presentation, is not that we make an amendment; it seems that the legislation in subsection 463(2) is good because it helps with compliance. The issue I have is more of time.

Why does it take so much time to ensure there is accurate reporting? We're finding out well after the election, over two years after the election, that there were issues related to an accurate report. We have other cases where we have accusations of massive overspending.

It seems to me that we should be looking at allowing Elections Canada more authority to do things in a more timely fashion.

I wonder if you might want to provide a comment on the timeliness of this.

[Marc Mayrand]

Again, it's not unusual. You probably are aware that our goal after an election, when we start a process of reviewing the returns, is to have completed the review of the returns within nine months of the time that they've been produced. That already brings us to 14 months after the general election.

That is generally a standard that's met in the majority of cases. There are special cases, or there are cases where it takes a bit more time because there is a misunderstanding on how certain transactions should be reported, at what cost they should be reported, and what's an eligible expense.

That's the discussion that takes place, and sometimes it drags on for a valid reason.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

In terms of confidence in Elections Canada, timely accuracy is important. Right?

[Marc Mayrand]

Absolutely.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

There is a need for us to look at how we can empower Elections Canada, maybe by providing more resources, but the issue is time.

If someone is going to overspend by $20,000, the only way you can equate justice to that over-expenditure in terms of a consequence is it has to be done in a timely fashion. The only way you can do that, I suspect, is if we give more strength to the legislation, and possibly resources, so that we could have something resolved within the first year, if in fact there have been over-expenditures.

Would you comment on that?

[Marc Mayrand]

I will point out that in my 2010 recommendations—and I think this committee examined that specific recommendation regarding how you deal with overspending—I recommended that an amount be withdrawn from the reimbursement that goes to the campaign. I think there was extensive discussion as to what should be the right proportion: would it be dollar for dollar that would be withdrawn from the reimbursement, or would it be two dollars, three dollars, or four dollars per dollar overspent.

I'm pointing out that there are alternative administrative measures that could help expedite this process, but doing it in a fair manner for all involved.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Sure.

Finally, there was the one settlement in which a candidate said they wouldn't spend the extra $2,000 if they were the nominated candidate. Is that appropriate? Do you have any comment on that sort of a consequence?

[Marc Mayrand]

That's in the context of a compliance agreement, which is negotiated between the commissioner and the campaign that's involved in the matter.

I would point out this is still part of a penal or quasi-criminal process and that it does require that the commissioner be satisfied that an offence has been committed. I think we need to move away from that whole regime of penal sanctions.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Lamoureux.

We'll go to four-minute rounds.

Mr. Mayrand has to leave at the top of the hour, so we'll try to get as many questioners in as we can.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chair.

Just to be clear, Mr. Mayrand, Mr. Lamoureux made reference to a dispute over alleged overspending of $20,000 in his hypothetical example, but we're not talking, in this case, about an alleged overspending of anywhere near that amount, are we?

[Marc Mayrand]

We're not talking at all about this case. I thought that was purely hypothetical.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I understand that, but in the case where someone does spend some vast sum over the amount, what you recommended in your recommendations to us was that there would be some kind of compensation on more than a dollar-per-dollar basis, that they would have to pay back a larger amount. When this committee discussed it, you were not part of those discussions, but we discussed the idea that, as the amount of overspending is larger, there should be a higher multiple in order to make the punishment fit the crime, as it were.

Here what we're talking about is not an actual crime or offence. We're talking about a failure to provide a document that might be used in determining that the person, the candidate, might have infringed some part of the legislation. Yet the penalty is far more severe the way you've interpreted the law.

I look at the law, and you're right that it's a little ambiguous, but if I were in your position, I could say what subsection 463(1) means is that I send a letter to an elected candidate who has failed to provide a document that I think he should provide after we disputed about it in court, and after all court mechanisms have run out. Instead, you decided at the front end to say he can't sit, and you sent your letter.

What you've done is you've taken the most aggressive available option, the most aggressive available interpretation. I would suggest to you that that is inappropriately harsh.

[Marc Mayrand]

I did not request a suspension. I brought to the attention of the Speaker the existence of subsection 463(2).

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

What you did, Mr. Mayrand, is you sent the Speaker a letter saying that, under the law, the individual can no longer perform his functions as a member of Parliament. You did that when there were still court options available, when it was not yet determined that you were in the right in the actual dispute you were having, and that he was in the wrong. Now that seems to me to be pre-emptive, and unnecessarily so.

[Marc Mayrand]

I also pointed out to the Speaker that there was a remedy available to the candidate in this case, going to court, and that I would advise the Speaker as soon as such remedy was filed in court, which I did. Again, the point here, as I mentioned in my introduction, is whether it's up to the Chief Electoral Officer to determine the question of privilege or to this committee and the House. I believe it's up to the committee and the House to determine how this matter should be addressed.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I have only one minute, so let me turn to another question very quickly.

It is your position that an expenditure occurred in the 2011 election and also the same exact expenditure occurred in 2008 and in 2006 in the same riding, as I understand it.

My question is, do you believe that a member can be suspended or can have his voting privileges taken away based on something that occurred in the election to a prior Parliament, or only in relation to election to that particular Parliament?

[Marc Mayrand]

Again, I think it's a matter of privilege for the House to assess. Subsection 463(2) doesn't make that distinction. It doesn't provide those kinds of directions. It may happen that a return that was filed several years ago does require to be reviewed in light of new information being made available.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I'm out of time.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Cullen, do you have something to finish?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I do. Thank you, Chair.

I have to admit, I was just reflecting on Mr. Reid's line of questioning, and I'm a bit disturbed by the supposition in there.

You pointed out the law earlier, subsection 463(2), which advises all parliamentarians on what happens when election laws are broken, that a member can be suspended. You keep referring to privilege, that the question of privilege as to whether someone having been seen to have broken the law can sit in the seat is a question that the House has to seize to remedy.

Again, I'm away from the particulars of this case to the general, which I think is important. Elections Canada has been involved in a number of incidents with sitting MPs and those who were not elected in which laws seemed to be contravened. Whether it was the robocall affair or the in-and-out scheme, there seems to be a pattern that's growing in a worrisome fashion.

I go back to you, Chair, and to the committee members. Obviously, we're going to have to bring in the law clerk or other legal experts who can advise us on this question of who decides when such a contravention takes place.

Mr. Mayrand, I have a question for you on the way the law is written right now. Under the current act, if the House were forced to wait until all appeals were exhausted, could we not set up an unfortunate situation in which somebody or a party knowingly breaks the election spending limit, then makes appeals through your office initially and then appeals to the court which could take, in some cases, years to remedy? Is that a reality with the situation we're facing right now? Could it be dragged out over a long period of time?

[Marc Mayrand]

It could take a significant time. If it goes to appeal, of course, we're talking certainly more than a year, probably more than two.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Just to be clear on the process with Elections Canada, how long has this process taken before the party went to court for appeal, in the two cases we've dealt with and in the case we have here today?